The ICC and Lubanga: Missed Opportunities

In the eastern provinces of the Democratic Republic of the Congo (DRC), the judgment handed down on 14 March 2012 by the International Criminal Court (ICC) in the Lubanga case shared the headlines with a story about new fighting in Masisi, North Kivu province between the national defense forces FARDC (Forces Armées de la République Démocratique du Congo) and the “Maï-Maï APCLS” and “Pareco Fort,” two of the newly created militias still roaming this part of the country. Local media sympathetic to the central government of Kinshasa reported that the FARDC inflicted big losses on the two rebel groups.

Masisi is where Bosco Ntaganda’s Congrès national pour la défense du peuple (CNDP) rebel group started its ascent to criminal fame in 2007, the year Thomas Lubanga was transferred to the Hague to face charges for crimes committed in the neighbouring Ituri district. While the trial in the case against Lubanga was underway, his former aide de camp Bosco Ntaganda was rising in the shadows of Laurent Nkunda, the most flamboyant rebel leader of the post-2006 election period. Bosco Ntaganda, whom the ICC later charged with the same crimes as Lubanga, has now metamorphosed into a regular FARDC officer. He is the de facto overall commander of the Eastern theater and, therefore, he can claim credit for the big FARDC victory reported on the same day as the Lubanga judgment.

Something terribly wrong must have happened for the first judgment in the history of the ICC to be overshadowed by the news glorifying the military prowess of a fugitive wanted by the Court but now working as a respectable army general for the same government that turned Lubanga over to the Court. Such a turn of events could have never been predicted ten years ago, when the Court’s intervention was sought as more than just an instrument of justice, but a potential tool for peace for the victims of the war that was pitting the government of Kinshasa against several armed groups scattered across the vast national territory.1 The Kinshasa government has its share of responsibility, having very cleverly used the ICC for its own political expediencies by turning its enemies over to the Court while shielding its friends from international prosecution. But to understand how what was one of the most fertile grounds for international justice in modern times was squandered so quickly, one must turn to the actions of the Court’s own prosecutor and the succession of faux pas and ill-advised decisions he took in the course of the investigation into the Lubanga case.

A Fertile Ground for Justice

In the DRC, the dichotomy between peace and justice has never played out at the same level of complexity as has been the case in many other country situations. Partly due to the excessive brutality of the war and the absence of any political rationality in the belligerents’ motives, it quickly appeared to many Congolese that the establishment of justice mechanisms was among the most effective means to put an end to the war. But the national justice system, undermined by corruption and weakened by lack of resources, was too limited to achieve this goal. Therefore, legal practitioners came to realize that some international justice mechanism was needed. Although different individuals and institutions offered different variations of such a mechanism, there was a broad agreement on the need to not leave unpunished the authors, foreign and national, of the gravest crimes of the war—including those committed before the entry into force of the Rome Statute.2

In Ituri, Oriental Province, a grassroots-level reconciliation process had started in September 2003 spearheaded by traditional leaders from the Hema and Lendu communities, whose members were most affected by the successive waves of the Ituri conflict. Most actors of these reconciliation efforts understood the need to complement and support the process with a justice component. There was strong popular support for the program to restore the criminal justice system in Ituri launched in December 2003 with funding from the European Union.3

The debate on international justice mechanisms was not limited to civil society circles. One of the five commissions established under the Inter-Congolese Dialogue (ICD),4 the commission on peace and reconciliation, was tasked with recommending measures to ensuring lasting peace within the national borders and security in the region. Members of the commission were clear about the fact that restoring lasting peace would be conditional on establishing dedicated justice mechanisms to prosecute war crimes. Their recommendations regarding the establishment of a truth and reconciliation commission and an international special tribunal for war crimes in the DRC were adopted by all 359 delegates to the ICD,5 rather than being referred to the upcoming transitional parliament as most “contentious” recommendations were.6

The transitional government formed in July 2003 engaged in an internal debate on the implementation of the recommendations of the “Global and Inclusive Accord” agreed at the 2002 Inter-Congolese Dialogue. On 25 September 2003 the transitional government approved a decision to refer war crimes and other international crimes committed throughout the territory of the DRC to the ICC, and to request the creation by the UN Security Council of an international special tribunal for the DRC to deal with crimes that would fall outside the jurisdiction of the ICC. Remarkably, this decision was reached by a government composed of leaders of armed groups and factions whose own conduct would be the object of investigations by any international criminal tribunal.

A Good Start: Devising the Theory of “Positive Complementarity”

At the outset, the ICC prosecutor took concrete and positive steps demonstrating his willingness to make the best use of complementarity mechanisms provided for in the Rome Statute. He organized his office so as to give complementarity issues the prominence they deserve. In addition to the Investigations and Prosecutions Divisions, he created a Jurisdiction, Complementarity and Cooperation Division (JCCD), which was given the task, among other things, to look into issues of admissibility and advise him on the proper balance between national prosecutions and the role of the ICC. The JCCD was to foster a practical division of labor between the ICC and the national courts, based on the principle of “a positive approach to complementarity, encouraging genuine national prosecutions wherever possible.”7

In the DRC situation, the prosecutor envisaged a clear division of labor whereby the ICC would prosecute a handful of individuals among those bearing the greatest responsibility, while the Congolese justice system, with the support of the international community, would take on other cases. Elements of such a division of labor were outlined in the following paragraph from the letter the prosecutor sent to President Kabila to seek his referral of the situation in the DRC: “Since the International Criminal Court will not be in a position to try all the individuals who may have committed crimes under its jurisdiction in Ituri, a consensual division of labor could be an effective approach. We could prosecute some of those individuals who bear the greatest responsibility for the crimes committed, while national authorities, with the assistance of the international community, implement appropriate mechanisms to deal with others. This would send a strong sign of the commitment of the Democratic Republic of the Congo to bring those responsible for these crimes to justice. In return, the international community may take a more resolved stance in the reconstruction of the national judiciary and in the re-establishment of the rule of law in the Democratic Republic of the Congo.”8

As articulated thus, the prosecutor’s theory of complementarity found a positive echo in the DRC. The national consensus achieved at the Inter-Congolese Dialogue around the need for a special international tribunal for the DRC had now extended to the need for the intervention of the ICC. Such a broad agreement among the Congolese public and politicians was justified by the idea that a division of labor was necessary between international justice bodies and the Congolese judicial system. The highest ranking leaders linked to the most serious crimes, including foreign nationals, would appear before international justice mechanisms, given the incapacity of the Congolese justice system to prosecute them. The Congolese justice system would use the respite gained in order to reform its internal structures as well as to prosecute people in lower-ranking positions.

Then Minister of Justice Ngele Masudi articulated this vision in his opening remarks at a meeting on the ICC in October 2002. Before a gathering of lawyers, law professors, senior members of the judiciary, human rights activists, and representatives of civil society organisations, Minister Masudi indicated that the government’s strategy to address war crimes was based on the principle of complementarity. The DRC would leave to the ICC the task of prosecuting those in the top leadership of armed groups who bore the greatest responsibility for crimes under ICC jurisdiction, whereas the Congolese justice system would deal with the lower ranking perpetrators and the less complex crimes. This was the background, Minister Ngele explained, against which the government had ordered the overhaul of the legal framework for military justice so as to give military tribunals jurisdiction over crimes under the Rome statute.9

The announcement by ICC prosecutor Moreno-Ocampo, on 23 June 2004, of the formal opening of investigations in the DRC seemed to reinforce the idea of a perfect division of work between the Congolese justice system and an international court. In the communiqué announcing the opening of the investigation, the prosecutor highlighted the fact that his office would focus its investigation so as to target “serious crimes” committed in the DRC territory from 1 July 2002 and only those “people that bore the highest responsibility” for the crimes.10

In the following months, however, the exact opposite happened. At the end of what appeared to be only a cursory investigation, the Court indicted people hardly thought of as bearing the highest responsibility for crimes that were not among the most serious committed in Ituri. The strategy Mr. Moreno-Ocampo was now implementing in Congo was moving away from the basic principles he had previously outlined. The prosecution strategy followed in DRC failed to follow the basic mechanism of complementarity it had proposed, and thus also undermined any chance of the Court fulfilling the objective, expected from any international criminal tribunal, of establishing a historical record that clearly identified those who were most to blame for the suffering of the Congolese people.

Very few among the Congolese legal community and civil society expected the ICC prosecutor to go as high up as he later did in the Sudan case. There, his indictment of President Bashir, though the person bearing the greatest responsibility for crimes committed in Darfur, was rightly criticized for its potentially adverse implications to the peace process that was taking place at the time of the indictment. The DRC situation was different. There was no shortage of individuals who were not heads of state who bore a much greater responsibility for crimes in Ituri than the ones the ICC prosecutor eventually indicted.

A Defective Prosecution Strategy

The strategic decisions the ICC prosecutor took early on in the DRC threw many in the Congolese legal and human rights communities into confusion and shook their views on the role and potential contribution they expected from the Court.

The first disillusionment came with news of the indictment of Thomas Lubanga as the first person to be charged by the ICC. Lubanga was being prosecuted for crimes consisting of “conscripting and enlisting children under the age of fifteen” and forcing them “to participate actively in hostilities in Ituri, from September 2002 to 13 August 2003.”11 Both the choice of individual and the crime he was charged for were set to irreparably damage the effectiveness of the division of labor between the Court and the Congolese justice system.

For most Congolese, Thomas Lubanga did not fit into the category of persons bearing “the greatest responsibility” for the crimes committed during the second phase of the Congolese war. A mid-level actor in the conflict in Ituri, Lubanga started his criminal career as an aide to Mbusa Nyamwisi, leader of the armed group RCD-ML (Rassemblement Congolais pour la Démocratie—Mouvement de Libération) which controlled Ituri between 1999 and 2002 with the support of Uganda. A large percentage of the crimes committed in Ituri were committed by the RCD-ML, of which Lubanga was only one among several “ministers.” Only in the beginning of 2003 did he create his own militia, the Union des Patriotes Congolais (UPC), also with the support and at the initiative of officers of the Ugandan army. As was the case with most of the militia in Ituri, however, the UPC’s operations were under the effective strategic control of the Ugandan army, whose officers retained command and control of military operations, including those during which crimes were committed against the civilian population.

Moreover, many in the DRC found it deeply disturbing that, after two years of investigations, conscription of child soldiers was all that the ICC prosecutor was able to point to as being among “the worst crimes” committed in Ituri. Loud expressions of indignation were quickly heard in the media and among the human rights community. Most of the journalists invited by the ICC in November 2006 to cover the court’s hearing on the confirmation of charges against Lubanga expressed their bewilderment at the fact that Lubanga was not prosecuted for more serious crimes. It did not make sense to the Congolese media that the ICC prosecutor would identify and describe “the instigators of the conflict in Ituri” and yet refrain from indicting them. According to John Lwamba, director of the Kinshasa daily L’Echo des Grands Lacs, “we criticise the work of the Court for only targeting the small fish.”12

In August 2006, the ICC also issued an arrest warrant against Bosco Ntaganda, former chef d’état-major général adjoint overseeing military operations of Thomas Lubanga’s militia, the UPC, for the same crimes as his former boss, conscription of children of less than fifteen years old.13 Proceedings in the case against Bosco Ntaganda have, however, not yet begun because Ntaganda, who has since become an officer in the government army, the FARDC, has not yet been arrested.

Human rights NGOs and victims’ associations across the country began questioning the prosecutor’s motives. Some warned that not taking into account the most serious crimes risked costing the Court its credibility in the DRC. In the months following the arrest of Thomas Lubanga and his surrender to the ICC, a group of twenty-five Congolese women’s and human rights organizations met in Beni, North Kivu to discuss the status of the ICC prosecutions in the DRC in light of the charges brought against Lubanga. In a strongly worded statement, these organizations expressed their “deep regret” that the only charge brought against Lubanga pertained to the enlistment and conscription of child soldiers. They stressed that Lubanga’s UPC had committed “several other crimes falling under the jurisdiction of the ICC, of which the details have been submitted to the OTP by national and international NGOs.” More specifically, the groups thought it was the ICC’s responsibility to address “the widespread commission of rape and other forms of sexual violence by the UPC.” They concluded their statement with a warning that a failure to add more serious charges would run the risk of “offending the victims and strengthen the growing feeling of mistrust of the work of the ICC in the DRC and of the work of the prosecutor especially.”14

The Congolese National NGO Coalition for the ICC, which claimed membership of more than a hundred leading human rights organizations, joined a group of international human rights NGOs in sending a letter to the ICC prosecutor in which they expressed their disappointment “that two years of investigation by your office in the DRC have not yielded a broader range of charges against Mr. Lubanga.” While acknowledging the seriousness of the charges related to enlisting of child soldiers, they cited concrete examples of the UPC’s involvement in the commission of far more serious crimes, such as the killing of 350 persons in the course of a military operation which also resulted in the “complete destruction” of more than twenty villages in February and March 2003. They also concluded that the failure to include additional charges for the most serious crimes in the case against Thomas Lubanga “could undermine the credibility of the ICC in the DRC.”15

The credibility of the Court was indeed seriously undermined. The much more serious charges of war crimes and crimes against humanity brought against two other militia leaders of Ituri, Germain “Simba” Katanga and Matthieu “Chui” Ngudjolo, in July 2007 were too late to do much to restore it. Katanga and Ngudjolo were arrested and surrendered to the ICC in connection with crimes committed in the course of a brutal attack jointly launched by their respective militia on the Ituri village of Bogoro in February 2003. They were eventually charged with war crimes consisting, amongst other things, of attacks against the civilian population, intentional murders, sexual slavery and rape, and crimes against humanity consisting of murders, rapes and sexual enslavement.16 However, according to Godefroy Mpiana of the human rights organization Justice Plus of Bunia, “the procedure [against Germain Katanga] was very delayed. The court had really spent its credit here on the ground.”17 Moreover, the ICC’s arrest of Ngudjolo and Katanga appeared in the eyes of many Congolese to be the result of a mix of opportunism and a public relations operation having little to do with a genuine effort to punish the leaders of crimes committed in Ituri. In particular, the fact that the case against Katanga was already before the Congolese courts, as explained below, on charges of genocide, war crimes and crimes against humanity under Congolese law, meant that its removal to the ICC had the effect of weakening national efforts at justice, while doing nothing to take on those who were their superiors.18

The commander of a small armed group, the Forces de résistance patriotique de l’Ituri (FRPI), one of the components of the Front des nationalistes intégrationnistes (FNI), Germain Katanga had been appointed a general of the Congolese national army in December 2004 with six other warlords from Ituri, over the protests of the victims’ organisations and the human rights activists who gave evidence of their implication in criminal acts in Ituri. Ngudjolo, meanwhile, occupied a lower post in the leadership chain of armed groups in Ituri, having served under the orders of Germain Katanga in the FRPI. He had joined the Congolese army at the same time as Katanga, and was arrested by the ICC in January 2008 while he was attending an army officer training course in Kinshasa.

Floribert Njabu, the political leader and one of the co-founders of the FNI, the movement in which Katanga and Ngudjolo were low-ranking officers, was held in a prison in Kinshasa at the time of the transfers of Katanga and Ngudjolo to the ICC, but was not himself transferred to the Hague. Even if the FNI was a movement of lesser scale than the RCD-ML, for example, Floribert Njabu better matched the profile of “person bearing the largest responsibility” for crimes committed by this armed group than either Katanga or Ngudjolo.

Moreover, there are strong indications that the government of Kinshasa and a larger armed group, the RCD-ML (Rassemblement Congolais pour la Démocratie—Mouvement de Libération) supplied the FNI-FRPI with military support for, and jointly planned, the Bogoro attack in connection of which Katanga and Ngudjolo are alleged to have committed the crimes under prosecution. According to Human Rights Watch, both the FNI and the FRPI received military and financial support from Uganda and, from late 2002, from Kinshasa “as the central government attempted to forge new allies in eastern Congo.” Both Njabu and Katanga have made public statements where they implicated senior Congolese government officials for the consistent financial and military support to FNI-FRPI at the time of the Bogoro attack.19

Hit–and–run investigations

The ICC’s failure to bring charges against high-ranking commanders and for the most serious crimes was a direct result of the prosecutor’s strategy of conducting quick investigations with the lowest cost possible. From the outset, the office of the prosecutor (OTP) invested only in low-intensity and short investigations in Ituri, relying on the cooperation of the Congolese government and the UN Mission in the Congo (MONUC) rather than on collecting direct victim testimony or using the material already collected by local NGOs for information on crimes and analysis of the cases. This system would eventually form the default operating protocol in the OTP and lead to investigative disasters elsewhere in the DRC, and in other countries, along the same lines as what I believe has become the fiasco of the Lubanga case.

It would appear that investigations were never at the top of the ICC prosecutor’s agenda from the time of the establishment of his office. While he devoted considerable efforts and resources in establishing the impressively bureaucratic Jurisdiction, Complementarity and Cooperation Division, he also put in place administrative operations and policies that had the consequence of undermining the importance and professionalism of the Investigations Division. In December 2003, for example, the prosecutor told a group of international NGOs that the investigative teams deployed to the field would be composed almost entirely of temporary staff. It was only after strong objections from some of those NGOs and senior staff in his office that he agreed to reconsider this initial plan.20 Among arguments put forward to counter the prosecutor’s initial plans was that from the experience of other international tribunals, expertise in field investigation and proper analysis of information and evidence, which is the foundation of a sound prosecution strategy and solid indictments, would not be easily obtained through lightweight, undersized investigative teams.

However, the prosecutor did not completely back down from his vision of light-touch investigations. He eventually integrated permanent staff into the investigative teams in the DRC, but the cost-efficient approach to investigations he was still committed to meant that investigators were sent to the field for short periods of time.21 In a 15 July 2004 meeting with NGOs, the prosecutor highlighted his vision of “a short and focused investigation” aiming at eliciting “a limited number of witnesses.” He thought this would “simplify witness protection” and stressed that this investigation strategy fitted best with his policy of seeking “more evidence from states, less from witnesses” while advancing his vision of “short trials with few charges.” He stressed other benefits of the strategy, including the fact that it would minimize the need for having local people in the investigative teams, thus helping avoid situations where impartiality is questionable.22

To be fair to the prosecutor, cost efficiency was part of the agenda that major state contributors were pushing both bilaterally and through the Assembly of States Parties (ASP) to the ICC, with some threatening to withhold or cut contributions unless clear cost-efficient policies were articulated by the OTP and other organs of the Court. The principle of an independent prosecutor, however, meant that such efforts by states parties to the Rome Statute could only concern decisions of a non-judicial nature.23 Indeed, in making the case for his hit-and-run investigations policy, the prosecutor was careful not to emphasize too much the cost-efficient argument, insisting instead on a range of other factors, such as security on the ground, quality of analysis of the situation, and the value of state cooperation.

In a meeting in March 2005, for example, he brushed aside objections from NGOs by insisting that “even with a small team, we can do a good investigation.” A participant in the meeting conveyed the view that the humanitarian NGO community in Ituri blamed the slow pace of investigations on the undersized investigative teams and the short periods of time they spent on the ground. The prosecutor immediately countered that “the problem in DRC is not the size of the [investigative team], but that factions are killing each other and killing peacekeepers and witnesses.” He offered the situation in Northern Uganda as proof that his strategy was working, since “in a few months, we have had a fast and efficient investigation in Uganda with a small team of twelve.”24

In addition to security conditions, he also thought state cooperation was more important than the size of the investigative teams or the time they spent on the ground. “What we learned in comparing Uganda and Congo,” he explained, “is that our life was different in Uganda because the government was more involved. We have worked longer in Congo and have less information, we need to improve cooperation [with the DRC state].”25 Since the DRC government and other state institutions such as the newly integrated army were populated with some of the individuals who potentially bore the greatest responsibility for the crimes committed in Ituri, such a strategy was a recipe for failure.

Two years into the investigation, while donor states, human rights groups and victims’ associations were impatiently waiting for the OTP to bring its first indictments, the situation was as follows. The cooperation with the DRC state on which the OTP had relied was so poor that it could not, on the prosecutor’s own admission, elicit enough quality information on the most serious crimes committed in Ituri to bring solid charges against those most responsible. The investigative teams assigned to the Ituri situation were too undersized and too short-term to generate good analysis of the intricately entangled criminal activities in this bloody part of Congo. Local NGOs and activists, who had more raw intelligence on the crimes than any other entity, were deliberately sidelined and their invaluable expertise not fully integrated into the investigative process. In such a situation the OTP was left with no other choice than to bring the most “manageable” charge for the short prosecution he envisioned.

It is this difficult position that led to the investigators having to rely on “intermediaries” for the identification of potential witnesses and the generation of contextual analysis. Much of the delay of the Lubanga trial was due to the heated debates between the prosecution and the defense over the credibility of evidence generated through intermediaries. The Court devotes a good chunk of its judgment to the issue of intermediaries and dismisses some of the evidence produced through the intermediary system as weak and full of contradictions. In the end, therefore, what was meant to be a short and cost-effective investigations strategy ended up causing unnecessary delays in the Lubanga trial and almost caused the prosecution’s case to be thrown out.

Failure to support national prosecutions and reforms

It was the prospect of a division of labor between international and national justice and the promise of international support to the reconstruction of the national justice system that attracted most in the Congolese legal community towards the ICC. The cooperation agreement between the ICC and the government of the DRC concluded in October 2004 provided for the possibility for the OTP to “cooperate with the [Congolese] courts and provide assistance to them for […] investigations, prosecutions, and any eventual trials for crimes that fall within the competent jurisdiction of the International Criminal Court.” The ICC prosecutor also committed to, “as far as possible, facilitate such assistance by third parties.”26 Immediately after the signing of the cooperation agreement, the Congolese Procureur général de la République (the chief public prosecutor) established a section in his office with a team of senior prosecutors in charge of the implementation of the cooperation mechanisms provided under the agreement.

This cooperation mechanism, however, has worked as a one-way street in favor of the ICC. While the ICC prosecutor has enjoyed unlimited access to the judicial proceedings before national courts in accordance with Article 36 of the ICC-DRC agreement, no Congolese court has been given information in the ICC’s possession relevant to crimes being prosecuted in national courts.27 Moreover, the ICC has not provided national courts with the much-needed training in prosecution of complex mass crimes, even though national prosecutors and judicial police officers have consistently identified such training as a prerequisite for a more efficient fight against impunity.28 Nor has the ICC prosecutor’s commitment to helping with international assistance for the rebuilding of the Congolese justice system materialized.

Moreover, it would appear that by taking cases away from national courts, the ICC’s intervention has, in fact, hindered progress towards the rebuilding of a functioning national justice system. All three militia leaders currently in the ICC’s custody were being prosecuted or had been indicted by Congolese courts at the time of their transfer to the ICC. Two of them, Thomas Lubanga and Germain Katanga, had been arrested following the murder of nine peacekeepers from the MONUC’s Bangladeshi battalion in February 2005 and charged by Congolese military prosecutors on different counts of looting, crimes against humanity, and war crimes. Until his surrender to the ICC on 17 March 2006, Lubanga had been in custody of the prosecutor of the Kinshasa Haute cour militaire (Military High Court), the highest military court in the land, but had not appeared before the court. Katanga had been arrested in March 2005 and a formal investigation file had been opened by Colonel Tsino, a Haute cour militaire investigative judge, against him and seven other militiamen.29 During his appearance before the investigative judge on 20 January 2006, Katanga was asked specific questions in relation to crimes committed during the attack on Bogoro in 2003—with which he and Ngundjolo were eventually charged at the ICC.30 Six months prior to his surrender to the ICC in October 2007, he had appeared before the Haute cour militaire in Kinshasa, which ruled on his application for conditional release by directing the military prosecutor to complete his investigations and bring the case to trial without further delay.31 Katanga was eventually transferred to the ICC before the investigative magistrate could complete his investigation. The long delay in bringing his and Lubanga’s cases to trial since they were arrested in 2005 was in part due to lack of training on the part of military investigative magistrates in investigation of complex crimes of an international nature.32 Nonetheless, the initial work in their cases had already been completed, enabling the prosecutor to take credit for bringing new cases without doing the hard work of investigation that should have established the basis for charges.

Mathieu Ngudjolo, meanwhile, had been charged with the kidnapping and murder of a UPC sympathizer in September 2003 and prosecuted before the Ituri Tribunal de grande instance, a civilian court of first instance. Ngudjolo’s acquittal on June 3, 2004 was mainly due to failure by Congolese and UN security agencies to protect the prosecution’s witnesses from threats by FNI supporters which led to the witnesses’ refusal to appear in court to give evidence.33

The failure of the Lubanga, Ngudjolo and Katanga cases to be successfully prosecuted before national courts is but an example of the many opportunities the ICC prosecutor missed to make good use of his stated vision of complementarity. The ICC prosecutor could have used the cooperation and complementarity mechanisms set out in the Rome Statute and the DRC-ICC agreement to help the Congolese justice system address both these obstacles to effective prosecution of war crimes in DRC—the lack of trained investigators and the lack of adequate national legislation defining the relevant crimes.34 Such help had been hoped for by participants to the November 2004 national seminar on the reconstruction of the justice system in DRC.35

The fact that the ICC simply took over the prosecution of crimes allegedly committed by these mid-level perpetrators, instead of helping the Congolese judiciary address them, sent the message that individuals and institutions involved in efforts to rebuild the Congolese justice system had no reason to speed up the pace of the reforms as long as the ICC could substitute its jurisdiction for that of national courts. It was painfully revealing, indeed, that to justify the ICC jurisdiction in the Katanga case, the Congolese Minister of Justice, the very person in charge of implementing reforms in the justice sector, referred to the “difficulties” of completing investigations, without having to face questions as to the reasons of such difficulties.36

Justice for which public?

The support that the ICC initially enjoyed in the Congo stemmed in part from the possibility that it could bring prosecutions against foreign actors involved in the bloody Congolese conflict. The test of the Court’s credibility in the Lubanga case was, according to Arthur Kepel, an analyst with the International Crisis Group, whether the Court was going to respond to the following important questions: “[…] who provided the weapons? Who supported the militia leaders? Where are the political leaders that are behind these crimes?”37

Right from the beginning, however, the prosecution strategy chosen by the ICC prosecutor was never likely to allow the Court to respond to these questions and thus tell the story of the conflicts in Ituri. First, the relatively low-level charges brought against Lubanga—and later against Ntaganda—could not reflect the full reality of the crimes committed in Ituri. Second, the relatively minor role that Lubanga played in the Ituri wars means that the Court has deliberately left in the shadows the most important actors; that is, all the national political and military leaders in DRC, Uganda and Rwanda. Even though the Court found evidence that at different times Rwanda and Uganda provided decisive support, including uniforms, weapons and training, to Lubanga’s UPC/FPLC while the government of Kinshasa was sending trainers and weapons to the rival APC rebel group, the Court still insisted on separating what it said were two different conflicts running parallel to each other. The conflict to which the UPC/FPLC was a party, the Court said, was “not a difference arising between two states but rather protracted violence carried out by multiple non-state armed groups” and therefore “it remained a non-international conflict notwithstanding any concurrent international armed conflict between Uganda and the DRC.”

The Court has thus been unable to place the crimes that it prosecutes in their full historical context and so contribute to the uncovering of the truth. Even though at the time of the facts alleged to have been committed by Lubanga, Ituri was under the occupation of the Ugandan army and the warring factions received direct support from the Congolese, Ugandan, and Rwandan governments, the Court agrees with the prosecutor that the crimes of which Lubanga was prosecuted “had been committed in the context of armed conflict that did not display an international character.”38

This sort of selective and scattering reading of history exposes the Court to the accusation that it has avoided the difficult task of confronting more powerful political individuals in the region and, therefore, that it has succumbed to a political or ideological instrumentalisation that is incompatible with its independence. It also distorts history by leaving the impression that the alleged crimes of Lubanga and other rebel leaders were motivated only by ethnic identity, and thus reinforces the lazy and inadequate image of “tribal warfare” portrayed by Western media who do not take the time to learn about the political and economic causes of those wars.

Conclusions

The strategy adopted by the prosecutor has led him to give priority to the views of states and the demands of international organizations over the needs of the victims. The concept of “positive complementarity” has resonance in the West among the representatives of international human rights organizations. However, its implementation was frustrated by the obsession with the need to obtain the cooperation of the states where the ICC’s investigations were taking place. The idea to set up small investigation teams and to deploy them for short periods was applauded by the contributing states and the international agencies impatient to see the beginning of the first trials. Yet the emphasis on cost-saving prevented the investigators from spending essential time with the victims and reigniting their faith in the international justice system. It is yet to be seen how these victims will have their faith strengthened by the first judgment of the International Criminal Court.

The conflict in Congohas gone through a succession of different phases since 1996. The first and shortest phase of the conflict, which lasted from November 1996 to May 1997, was instigated by a rebel movement known as the AFDL (Alliance des forces démocratiques pour la libération du Congo) against President Mobutu’s Forces Armées Zairoises (FAZ, the national army). The support the AFDL enjoyed from Ugandan and Rwandan troops gave the conflict its international dimension. It ended with the ousting of Mobutu in May 1997 and his replacement as president with the AFDL leader Laurent-Desire Kabila. The second phase of the conflict started in August 1998 when Rwanda and Uganda turned their back on Kabila to support a dissident rebel movement, RCD (Rassemblement congolais pour la démocratie) and many other splinter groups, all aiming to unseat President Kabila who, for his part, got the support of troops from Angola, Namibia and Zimbabwe, in addition to creating and arming self defense groups (the so-called “Mayi-Mayi”) in the RCD-controlled territories. The signing of the December 2002 comprehensive peace agreement in Pretoria, South Africa, formally put an end to the national and international dimensions of the conflict and paved the way for a transition period led by a national unity government. However, it also resulted in more localized conflicts in eastern territories in a third and still ongoing phase of the conflict. ↩

NGO participants in a May 2001 seminar convened by the DRC office of the International Human Rights Law Group recommended the creation of a special international criminal tribunal that “should be of a hybrid or mixed character (its judges and prosecutors should consist of both Congolese and non-Congolese nationals)”. They also recommended the creation of “a national Truth Commission, the establishment of a grassroots-level reconciliation process, and reinforcing the capacity of the Congolese judicial system.” In October 2001, the Centre pour la Paix en Afrique Centrale (CIPAC) issued a report entitled « Pourquoi une juridiction spéciale pour la RDC ? » which discussed different options for a mechanism to try the most serious crimes committed since 1996. The report recommended the creation of a special tribunal with both Congolese and international judges, and set to apply both national criminal law and international humanitarian law. The August-October; 2002 issue of “Le Scrutin”, a newsletter published by LINELIT, a Kinshasa-based civic education organization, run an article under the headline “Quelles juridictions pour la répression des crimes internationaux commis pendant les guerres en RDC de 1996 à 2001?” which recommended the creation of a special tribunal following the model of the ICTR. ↩

Efforts to bring an end to the second cycle of war in Congo that had flowed throughout the country since 1998 led to the convening in 2002 of peace talks, known as Inter-Congolese Dialogue (ICD), in Sun City, South Africa. In December 2002, participants to the ICD reached a Global and Inclusive Accord (Accord Global et Inclusif) which set a timetable for a two-year transition government leading to democratic elections. ↩

Report of the International Criminal Court to the UN General Assembly,1 August 2005, A/60/177, para. 28 ↩

Letter from Prosecutor Luis Moreno-Ocampo to H.E. Joseph Kabila, President of the Democratic Republic of Congo, 25 September 2003 (on file with author). ↩

Military tribunals in Congo have effectively prosecuted authors of Rome Statute crimes. For a comprehensive study of these prosecutions, see Avocats Sans Frontières, Etude de jurisprudence : l’application du statut de Rome de la Cour pénale internationale par les juridictions de la République Démocratique du Congo, March 2009. However, the way military courts exercised their jurisdiction on international crimes was marred with abusive practices which justified recent attempts at amending the military penal code and the military code of criminal procedure. For a comprehensive critical analysis of the Congolese military justice, see Marcel Wetsh’okonda Koso, Democratic Republic of Congo : Military justice and human rights—An urgent need to complete reforms, (a report by AfriMAP and OSISA), OSISA, June 2009. ↩

“Obtaining further charges in the opening case against Thomas Lubanga”, Statement by women’s rights and human rights NGOs of the DRC on the prosecutions by the ICC, Beni, September 16, 2006 (on file with the author). ↩

The other signatories of the letter of 31 July 2006 are: Avocats Sans Frontières, the Center for Justice and Reconciliation, FIDH, Human Rights Watch, ICTJ, Redress, and Women’s Initiative for Gender Justice. ↩

Warrants of arrest No.ICC-01/04-01/07 of 2 July 2007 and No. ICC-01/04-02/07 of 6 July 2007 in the cases of The Prosecutor v. Germain Katanga and The Prosecutor v. Mathieu Ngudjolo Chui respectively. ↩

By the time of his transfer to the Court, Katanga was in custody of the Congolese military justice and was awaiting the commencement of his trial in the case Auditeur militaire c. Germain Katanga et Crts, No RDP 001/05, before the Haute cour militaire of Kinshasa, in connection with different attacks on civilians and the murder of nine United Nations peacekeeping troops in Ituri on 25 February 2005. ↩

Interviews with senior investigators in the OTP, January-March 2005. ↩

Investigators never spent more than a few days, according to local NGOs and MONUC staff in Bunia. ↩

Personal notes of a meeting with the prosecutor and the OTP officials, The Hague, July 15, 2004. ↩

According to Art 112(2)(b) of the Rome Statute, the Assembly of States Parties “shall. . . provide management oversight to the Presidency, the Prosecutor and the Registrar regarding the administration of the Court. ↩

Personal notes of a meeting between the ICC prosecutor and NGOs in New York, March 4, 2005. ↩

Personal notes of a meeting with the prosecutor and OTP officials, The Hague, July 15, 2004. ↩

Judicial Cooperation betweenthe Democratic Republic of the Congo and the Office of the Prosecutor of the International Criminal Court, Article 37, Kinshasa, 6 October 2004. ↩

According to October 2004 Judicial Cooperation Agreement between the DRC and the Office of the ICC prosecutor, “the Office of the Prosecutor may cooperate with national jurisdictions and provide assistance to them for those investigations, prosecutions, and any eventual trials for crimes that fall within the competent jurisdiction of the International Criminal Court.” ↩

Statement by the DRC Government in opposition to Germain Katanga’s challenge to the admissibility of his case before the ICC on the ground that he has already been the subject of proceedings by Congolese courts for the same facts, 1 June 2009, http://www.icc-cpi.int/iccdocs/doc/doc711960.pdf. ↩